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November 24, 1980

Joseph GARDESKI, Hazel Gardeski, Vincent J. LaRocca, Michael Celuch, Louis J. Clausi, Joseph J. Tiano, Russell J. Costello, Thomas Mottsey, Acker Bus Lines, Inc., Edward Acker, Lucille Acker, Steven Gardeski, Helen Gardeski, Margaret Carpino, Dominic Tiano, Thomas Carpino, Richard Carpino, Stanley Gardeski, Louis Gardeski, Eva Clausi, Rose Tripoli, Chris Lindhurst, Frank D. Rittie, John Pirigyi, Leo Stopczynski, Margaret Chellemo, Theresa Ferrendino, Frank Costello, Clyde Robbins, Stanley Szynansky, Vernon J. Lewis, Jennie Lewis, Anthony Alecca, Jr., Margaret Alecca, Paul Natale, Leslie D. Elliott, George W. Acker, Paul E. Smith, Gloria Guido, Anthony Guido, Russell R. Mottsey, Emil LaRocca, Frances LaRocca, John A. Iconelli and Anna Denter, individually and on behalf of a class of all others similarly situated, Plaintiffs,
COLONIAL SAND & STONE CO., INC., Hudson Cement Corp., Strelene Realty Corporation and Independent Cement Corp., Defendants

The opinion of the court was delivered by: SOFAER

This is a citizens' suit brought to enforce the anti-pollution standards of the federal Clean Air Act, 42 U.S.C.A. §§ 7401-7626 (Supp.1979). Plaintiffs are forty-five persons who live, work, or own businesses or real property in the vicinity of a cement plant located in East Kingston, New York. They allege that the plant has operated since 1976 in violation of the emission standards of both the Clean Air Act and New York state law. In particular, they claim that the plant's emissions of dust and particles have far exceeded permissible limits; that repeated requests and warnings, both private and public, failed to cause defendants to cease their illegal conduct; and that the emissions have damaged plaintiffs' health and property.

In Part I of their complaint, plaintiffs seek injunctive relief under the Clean Air Act to prevent future violations of emission standards. In Part II, plaintiffs seek money damages under state law for injuries sustained due to past violations. *fn1" Claims under Part II may properly be considered under the doctrine of pendent jurisdiction only if subject matter jurisdiction exists over the claim in Part I.

 The defendants include the owner of the plant, Colonial Sand & Stone Company ("Colonial"); Colonial's wholly owned subsidiaries Strelene Realty Company (the owner of the underlying real estate) and Hudson Cement Corporation (which at one time performed financial services in connection with the ownership of the plant); and the lessee and operator of the plant, International Cement Corporation ("ICC"). Defendants have filed motions to dismiss and for summary judgment on several grounds, including lack of subject matter jurisdiction and, most recently, mootness. This opinion deals with the mootness claim, and with the assertion by defendants that enforcement efforts of the New York State Department of Environmental Conservation ("DEC") are sufficient to preclude jurisdiction under a statutory provision that bars citizen suits where a "State has commenced and is diligently prosecuting a civil action in a court of ... a State" to require compliance with the statute. 42 U.S.C.A. § 7604(b)(1)(B) (Supp.1979).

 I. Mootness

 ICC has moved to dismiss Part I of the complaint as moot. ICC has occupied the cement plant since approximately April, 1978 under a lease arrangement with defendants Colonial and Strelene. The original lease was for one year, with renewals at ICC's option for periods through March 31, 1981 and March 31, 1984. ICC exercised its first option, thereby extending the lease term to March 31, 1981. On June 6, 1980, however, ICC, citing the prohibitive cost of rehabilitation, announced its intention to discontinue operating the plant immediately and permanently. A month later, on July 14, 1980, ICC gave written notice to Colonial and Strelene of its intention not to exercise its option to extend the lease beyond March 31, 1981. ICC claims that, since it does not own and no longer operates the facility, no activity remains to be enjoined by this action.

 The Supreme Court has refused on several occasions to hold that an action is moot merely because a defendant terminates allegedly improper conduct. In United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1897), the dissolution of a freight association whose activities had been challenged under the Sherman Act did not prevent the Court from enjoining future illegal activities. Similarly, in United States v. W. T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953), an action was brought to enjoin violations that resulted from one individual maintaining interlocking directorates in three sets of competing corporations. After the complaint was filed, the individual resigned the offending positions, and the defendants moved to dismiss the case as moot. But the Court refused to require dismissal, stating that "voluntary cessation of allegedly illegal conduct ... does not make the case moot," since otherwise the defendant would be free to resume his former conduct. Id. at 632, 73 S. Ct. at 897.

 The Court took essentially the same position under a similar fact situation in United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968), noting that a case may be moot if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, but mere statements that it would be uneconomical to engage in such acts "cannot suffice to satisfy the heavy burden of persuasion which we have held rests upon those in appellee's shoes." Id. at 203, 89 S. Ct. at 364 (citing W. T. Grant, supra, 345 U.S. at 633, 73 S. Ct. at 897).

 ICC has not met the burden of proving this action is moot. While ICC has apparently ceased operating the cement plant, it remains legally empowered to recommence the challenged activities. ICC will continue to hold the plant as lessee until at least March 31, 1981, when its current lease expires. Furthermore, although ICC has notified Colonial and Strelene that it will not exercise its option to extend the lease until 1984, ICC may in fact be free to negotiate a new lease agreement when the current one expires. So long as the plant remains standing it could be used again, by ICC, Colonial, Strelene, or by another lessee or sublessee.

 If the defendants have in fact given up using the plant or permitting its use, then an injunction may be unnecessary. But the case is not moot. See United States v. Parke, Davis & Co., 362 U.S. 29, 80 S. Ct. 503, 4 L. Ed. 2d 505 (1960); United States v. Oregon State Medical Society, 343 U.S. 326, 72 S. Ct. 690, 96 L. Ed. 978 (1952).

 II. Subject Matter Jurisdiction

 A. Statutory Framework

 The Clean Air Act, as amended, 42 U.S.C.A. §§ 7401-7626 (Supp.1979), is the product of successive efforts by Congress since 1955 to come to grips with the nation's air pollution problem. See generally F. Grad, Environmental Law § 3.03 (2d Ed. 1978). The Act is designed "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C.A. § 7401(b)(1) (Supp.1979). Primary responsibility for enforcing the statutory standards of the Clean Air Act is left to state and local governments. Id. § 7401(a).

 In 1970, responding to the view that state and local efforts had failed adequately to control air pollution, Congress for the first time created a mechanism to establish specific air quality standards that each state would be obligated to enforce. Clean Air Act Amendments of 1970, Pub.L.No.91-604 § 4(a), 84 Stat. 1678 (1970) (codified in 42 U.S.C. § 7401(a) (Supp.1979)). To ensure that state and local governments would fulfill their obligations under the Act, Congress added a provision permitting suits by private citizens in federal court to enforce the substantive standards set forth in the statute. Section 304(a) of the Clean Air Act, 42 U.S.C.A. § 7604(a) (Supp.1979), reads in pertinent part:

Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf --
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by ...

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